On Report and Recommendation of the Board on Professional Responsibility (BDN 344-96 & 24-97).
Before Terry and Glickman, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
This matter returns to us following our remand to the Board on Professional Responsibility. See In re Edwards, 808 A.2d 476 (D.C. 2002). As our earlier opinion explained, the Board initially recommended that respondent Lucy R. Edwards be disbarred for reckless misappropriation of funds entrusted to her in four different client matters, in violation of Rule 1.15 (a) of the District of Columbia Rules of Professional Conduct. We upheld the Board's finding that respondent misappropriated funds given to her by one of her clients, the Reverend Robert Ansah.*fn1 Id. at 482. We determined, however, that the Board's finding of misappropriation in three other client matters was not supported by substantial evidence. Id. The evidence therefore did not establish the "extensive pattern of misappropriation" on which the Board based its finding of recklessness and recommendation of disbarrment. Id. at 485. We remanded respondent's case to the Board for reconsideration of its findings and recommendation. Id.
On remand, Bar Counsel conceded and the Board has found that respondent's single instance of misappropriation (involving the funds of Reverend Ansah) was neither intentional nor reckless but rather was merely negligent. In its initial report, the Board found that respondent also had committed other violations of the Rules, namely commingling of client funds with her own funds in violation of Rule 1.15 (a), failing to deposit entrusted funds in a properly designated trust or escrow account in violation of Rule 1.17 (a), failing to maintain complete records of entrusted funds as required by Rule 1.15 (a) and D.C. Bar R. XI, § 19 (f), and failing to set forth in writing the rate or basis of her fee as required by Rule 1.5 (b). In its report after remand, the Board concludes that these additional violations, "while serious in and of themselves, [did] not make Respondent's negligent misappropriation in this case especially grave in comparison to the run of negligent misappropriation cases that we have reviewed, many of which also involve commingling and failure to operate trust accounts in the proper manner." See, e.g., In re Anderson, 778 A.2d 330, 340 (D.C. 2001) (citing cases). Respondent testified before the Hearing Committee that her mishandling of client funds was a product of confusion and disorganization within her office. The Board credits respondent with having "at least attempted to operate an accounting and record-keeping system with the assistance of her office staff, although that system went awry." In addition, the Board identifies several mitigating circumstances that, in its view, "significantly temper the gravity" of respondent's ethical missteps.*fn2
The Board recommends that we suspend respondent from the practice of law for six months without conditioning her reinstatement on a demonstration of fitness. See D.C. Bar R. XI, § 3 (a)(2). "Each case must be decided on its facts," the Board notes, but in its view "this case does not demonstrate the sustained and serious problems that have led the Court to order fitness in other cases." Concerned, however, that respondent "exhibited confusion [in her Hearing Committee testimony] about the current status of her operating and escrow accounts," and that she still may not have "adopted appropriate procedures in her office to ensure the safety of entrusted funds," the Board suggests that she be required to complete three hours of continuing legal education on the handling of such funds.
Both respondent and Bar Counsel take exception to the recommended sanction.*fn3 Respondent contends that a six-month suspension is too severe in light of the mitigating circumstances.
In re Kersey, 520 A.2d 321, 327 (D.C. 1987), respondent particularly faults the Board for disregarding evidence that her misconduct coincided with a stressful period in her life during which she suffered temporarily from a disabling, albeit "mild," depression. Bar Counsel counters that respondent waived her Kersey mitigation claim. Bar Counsel argues, further, that in view of respondent's depression and the unresolved questions about her ability even now to institute proper procedures for handling entrusted funds, respondent should be required to establish her fitness to practice law before she is reinstated.
Our practice under D.C. Bar R. XI, § 9 (g)(1) is to adopt the sanction recommended by the Board "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." This practice "endorses the Board's exercise of broad discretion in handing out discipline that is subject only to a general review for abuse in that discretion's exercise." In re Smith, 403 A.2d 296, 303 (D.C. 1979). We appreciate that the choice of sanction "is not an exact science but may depend on the facts and circumstances of each particular proceeding." In re Goffe, 641 A.2d 458, 463 (D.C. 1994) (internal citation omitted). Indeed, "[e]ach of these decisions emerges from a forest of varying considerations, many of which may be unique to the given case." Smith, 403 A.2d at 303. Accordingly, we "respect the Board's sense of equity in these matters" unless the recommendation is patently unreasonable or is materially inconsistent with the sanctions that we have imposed in comparable cases. Id. In the final analysis, of course, the choice of appropriate sanction "is the responsibility and duty of this court." Goffe, 641 A.2d at 464.
To ensure that we reach consistent dispositions, we necessarily compare the instant case with prior cases in terms of the misconduct at issue, the attorney's disciplinary history, and any legitimate mitigating or aggravating circumstances. The ultimate issue -- whether a particular sanction is warranted or not in a given case -- requires us also to consider the individual qualifications and fitness of the attorney whose case is before us and, especially, the paramount need to protect the public, the courts, and the legal profession. See, e.g., In re Weiss, 839 A.2d 670, 672 (D.C. 2003); In re Corizzi, 803 A.2d 438, 441-42 (D.C. 2002). Thus, when the specific question is whether to require a suspended attorney to show fitness to be reinstated, we have examined both our practice in comparable cases and factors such as (1) the nature and circumstances of the attorney's misconduct, (2) whether the attorney appreciates the seriousness of the misconduct, (3) the attorney's subsequent conduct, including particularly remedial or preventive measures, (4) the attorney's present character, and (5) the attorney's present qualifications and competence to practice law. See, e.g., In re Lopes, 770 A.2d 561, 570 (D.C. 2001). The threshold question is "whether the passage of the suspension period alone, without further evaluation, will leave the court uninformed or concerned with respect to the enumerated factors, thus indicating that substantial questions remain about respondent's fitness to practice law." In re Robinson, 736 A.2d 983, 990 (D.C. 1999) (internal citation omitted).
By and large, the foregoing considerations support the sanction recommended by the Board in this case. A six-month suspension without a fitness requirement is the norm for attorneys who have committed negligent misappropriation of entrusted funds together with the related violations (commingling, deficient record keeping) exhibited here.*fn4 Setting aside momentarily respondent's putative Kersey disability claim, the allegedly mitigating circumstances to which she points cannot be said to distinguish this case from the line of similar cases in which six-month suspensions have been imposed. See, e.g., Davenport, supera note 4, 794 A.2d at 603-05; Chang, supera note 4, 694 A.2d at 878; Reed, supera note 4, 679 A.2d at 508-09. By the same token, the fact that respondent's fund handling errors affected other clients besides Reverend Ansah, which Bar Counsel cites as an aggravating factor, does not differentiate this case from similar cases in which no fitness requirement was imposed. See, e.g., Davenport, supra. Moreover, as the Board recognizes, there exist factors in this case that affirmatively support allowing respondent to be reinstated without a showing of rehabilitation: she has practiced law for over three decades without having been disciplined previously; she did not profit personally from her ethical mistakes in this case; her clients were not harmed; the Board credits her good faith; she evidently does appreciate the seriousness of her misconduct; and she has at least attempted to reform her procedures.
However, there are two disputed issues that we need to address. The first is whether respondent's episode of depression at the time of her misconduct is either a mitigating circumstance under Kersey or a reason to impose a fitness requirement. The second is whether a fitness requirement is needed in light of the Board's concern that respondent remains confused about her responsibilities and has yet to establish appropriate procedures in her law office for handling entrusted funds.
With regard to the first issue, we think the Board is correct in attaching no significance either way ...